Government and governance, Law | Asia, Southeast Asia

21 March 2018

Indonesia’s controversial MD3 law allowing politicians to avoid corruption investigations actually changes very little on paper. In practice, however, it might be another story, Simon Butt writes.

Over the past few weeks, many reform-minded groups and individuals have lamented the passage of amendments to a statute governing Indonesia’s national and regional legislative bodies (the so-called ‘MD3 law’, enacted in 2014).

No fewer than five applications seeking its invalidation have already been lodged with the Constitutional Court of Indonesia, even though the statute has not yet been signed by the president and passed into law.

By most accounts, the motivations of the House of Representatives (DPR) – regarded by many as largely corrupt, incompetent or both – for making these amendments were far from pure. Observers say the amendments are anti-democratic because they will silence critics of the Parliament, grant de facto immunity to legislators for crimes they commit and empower the Parliament to compel any individual or body to appear before it.

Many suspect, quite reasonably, that the Parliament intended the amendment to protect it from being pursued by the Anti-corruption Commission (KPK), which has investigated and successfully prosecuted dozens of legislators, serving and retired.

Some reformists fear that it will now be harder for the KPK to investigate legislators; that the Parliament will be able to take legal action against the commission simply for summonsing legislators to attend its offices for questioning; and that the legislation will enable politicians to ‘turn the tables’ by empowering them to call the commission to attend parliamentary meetings for questioning.

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However, if the Parliament intended to achieve these ends with the amendments, it appears to have completely failed to do so, at least on paper. Despite the outrage surrounding their legislative approval, the amendments make remarkably few legal changes of any real substance.

Critics have primarily attacked Articles 73, 122 and 245 of the amendments. Article 73 allows the Parliament, when exercising its powers and functions, to call “any person” to attend a DPR meeting. Recipients of such a call must attend. If, after being called three times, they do not, then the Parliament can compel them to attend, using the police, and can detain them for up to 30 days.

This is not markedly different in substance from the original Article 73, which allowed the compulsory calling of a “public official, government official, legal entity or community citizen” to attend a parliamentary meeting. Again, failure to attend after three consecutive calls allowed the Parliament to compel attendance using the police, and to detain for up to 30 days.

There are two main differences between the old and the new Article 73. The first is that the amendment allows “any person” to be called whereas, as mentioned, the previous version is arguably more restrictive. Still, the old version would appear to have applied to most individuals, legal entities and government employees, which may well have included the KPK, its commissioners or its employees.

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The second is that the amendment contains more detailed procedures about how the Parliament is to ask the police for assistance. In this context, it emphasises that the police must assist the Parliament and declares that more detailed regulations about compelling attendance and detention are to be provided in national police regulations.

These two additions appear to add very little to the practical effect of the original version of Article 73. They do nothing to help the Parliament bring the KPK to heel.

Article 245 previously required written approval from the DPR Ethics Council before investigators could call in legislators suspected of a crime for questioning. This requirement was changed by the Constitutional Court in 2015, which took the task of approving investigations out of the hands of the Ethics Council and gave it to the president.

The new Article 245 maintains the Constitutional Court’s requirement for the written approval of the president but adds a role for the DPR Ethics Council, whose views the president must obtain before deciding whether to approve the request. It also retains some exclusions to the requirement that investigators obtain presidential approval, which apply if the legislator was caught red-handed, or is suspected of committing a ‘special’ crime. This category of offences includes corruption.

Critically, the new Article 245 also adds that the requirement for presidential approval to investigate politicians applies only to crimes not related to the implementation of their official tasks as legislators. This is clear from the words of Article 245 itself, but can also be implied by the amendment’s removal of Article 224(5) of the 2014 MD3 law.

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The net result of this is that Article 245 provides no shield to legislators under KPK investigation for corruption. The written approval requirement does not apply to such investigations and, even if it did, approval would be required by the president, not the Council.

Article 122(l) gives the Ethics Council the task of taking “legal and other steps against people, groups or legal entities that undermine the honour of the DPR and DPR members”. While this seems designed to protect the DPR from criticism, Article 122(l) does not add any criminal offences or punishments to those already existing under Indonesian law.

Indonesian politicians are already quite willing to pursue statements they consider derisory using Indonesia’s draconian defamation laws. As Indonesian law currently stands, the Ethics Council lacks power to prosecute and convict – this is still a matter for Indonesia’s general courts.

From a legal perspective, the DPR appears to have achieved very little, if anything, with these amendments, except for attracting criticism for being resistant to anti-corruption reform.

The practical effect of these amendments is, of course, another matter. Much will depend on the way they are interpreted by Indonesia’s courts. It is almost certain that legislators accused of corruption will attempt to use the amendments to have their cases thrown out in pre-trial proceedings if the Anti-corruption Commission does not obtain prior written approval before investigating them.

The author thanks Dr Fritz Siregar and Bivitri Susanti for comments on drafts. The views expressed here are the author’s own, as are any errors.

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